A gap in your accrued residence rights? Sometimes you are still entitled to EU long-term resident status

It regularly happens that foreigners are confronted with a retroactive withdrawal of their residence permit. For example, a knowledge migrant who loses his job and is unable to find another job within three months. Or a foreigner with a residence permit “stay with partner” and the relationship ends. Retroactive withdrawal often creates a residence gap between two residence permits. This gap ensures that the build-up to five years for obtaining Dutch citizenship and obtaining a permanent residence permit starts counting again. A residence gap can therefore have major consequences for foreigners who want to consolidate their right of residence in the Netherlands.

“Formal procedural stay”: does not count but does not constitute an interruption of the five years.

With regard to obtaining status as an EU long-term resident, it is not always the case that a residence gap causes a foreigner to lose the accrued years of residence. This is the case if the period to which the withdrawal relates can be regarded as a “formal procedural stay”. But what is “formal procedural stay” also called procedural right of residence?

The concept of “formal procedural stay” comes from the EU long-term residents directive. A “formal procedural stay” exists:

• if a foreigner did not have a residence permit during a period in between residence permits, but was awaiting a decision on an application;
• if a foreigner did not have a residence permit during a period in between residence permits, but was subject to an objection or appeal procedure.

The IND takes the position that this procedural right of residence only takes effect from the moment the objection or appeal has been filed. Our office has argued in case of a client that this interpretation is too limited and not in line with the EU Long-Term Residents Directive. The period subject to the objection or appeal procedure must also be regarded as formally limited.[1] The Hague District Court, sitting in Amsterdam, has agreed with us: the period subject to the objection and appeal procedure is also formally limited. According to the Court, the IND’s more limited position is not in line with the purpose of the EU Long-Term Residents Directive. According to the Directive the most important criterion for acquiring the status of long-term residents is the duration of stay in the territory of a Member State. What does this mean in concrete terms?

Example Case

Suppose the following scenario: a knowledge migrant has a residence permit valid until January 1, 2025. He loses his job on March 1, 2024. The knowledge migrant will start working for a new employer on June 1, 2024. On September 1, 2024, he finds out that this company is not yet a recognized sponsor. The company becomes a recognized sponsor on October 1, 2024. By decision of November 1, 2024, the knowledge migrant’s residence permit is withdrawn with retroactive effect from June 1, 2024 to October 1, 2024. The knowledge migrant objects to this decision on November 3, 2024. The IND takes the position that his formal procedural stay starts on November 3, 2024, the moment the objection is filed. With this position, the knowledge migrant would still have a gap in his residence between June 1, 2024 and October 1, 2024. The Court has now ruled that the procedural stay also applies to the period June 1, 2024 to October 1, 2024: the period covered by the objection. His residence started on January 1 2021, which means he will be eligible for EU long term residence 1 May 2026.

Important remarks.

A number of important points to note on this topic:

• Formal procedural stay ensures that the period before the residence gap counts when building up to five years. The period itself does not count.
• When applying for status as an EU long-term resident, the foreigner must have a non-temporary residence status.
• Formal procedural stay only exists for obtaining EU long term residence.
• If the foreigner wishes to apply for Dutch citizenship or national permanent residence, a gap is not allowed at all.

Finally: “formal procedural stay” will probably be deleted

The European Commission has presented an amended proposal for the EU Long-Term Residents Directive.[2] In this new proposal, formal procedural stay has been deleted. This will most likely mean that the Netherlands will also delete this provision in the regulations. It is unclear when this will be the case.

More information needed? Please contact our office.

[1] See our earlier article on our website: https://www.kroesadvocaten.nl/en/eu-long-term-residence-permit-and-formal-procedural-stay/.  [2] COM (2022) 650.